People (Attorney General) v Shribman and Samuels

• Jurisdiction: Ireland
• Court: Court of Criminal Appeal
• Judgment Date: 08 March 1946
• Date: 08 March 1946

The People (Attorney-General) v. Shribman and Samuels.

THE PEOPLE (at the suit of the Attorney-General)

and

JOSEPH SHRIBMAN AND WILLIAM SAMUELS (1)

Court of Criminal Appeal.

Criminal law - Appeal - Emergency legislation - Emergency Powers Order - Construction - Export of specified articles prohibited "otherwise than under . . . licence" - "Cutlery, hardware, implements and instruments"- Whether a watch is an "instrument" - Onus of proof - Whether complainant must prove non-existence of licence - Proof of Order - Subsequent Order providing Courts shall take judicial notice of Orders - Retrospective effect of Order - Validity of Order - Special Criminal Court - Amendment of indictment - Conspiracy - Uncorroborated evidence of accomplices - Accomplices convicted, but not sentenced at date of trial - Emergency Powers Act, 1939 (No. 28 of 1939), s. 2, sub-s. 2; s. 5, sub-s. 2 - Emergency Powers (Continuance and Amendment) Act, 1942 (No. 19 of 1942), s. 8 -Emergency Powers (Control of Export) Order, 1940 (Stat. R. & Or. 1940,No. 149) Art. 3 - Emergency Powers (No. 373) Order, 1946 (Stat. R. & Or. 1946, No. 16) Art. 2; Art. 3 (1).

The two accused were charged before the Special Criminal Court with"conspiracy to export scheduled articles otherwise than under and in accordance with the provisions of Article 3 of the Emergency Powers (Control of Export) Order, 1940, contrary to s. 5 of the Emergency Powers Act, 1939 as amended by s. 8 of the Emergency Powers (Continuance and Amendment) Act, 1942." The indictment was amended at the trial by the insertion of the sub-section to s. 5 of the Act of 1939, making the indictment read "contrary to s. 5, sub-s. 2, of the Emergency Powers Act, 1939," etc.

The particulars of the offence were that they conspired together and with other persons "to export scheduled articles (within the description cutlery. hardware, implements and instruments), to wit, watches," without a licence,

The Emergency Powers (Control of Export) Order, 1940 was not proved at the trial.

Both the accused were convicted. One of the accused was sentenced to three years' penal servitude and fined £4,500, and the other was sentenced to two years' imprisonment and fined £3,000. In both cases the sentences were not to be served if the respective fines were paid within two months.

Both accused applied to the Court of Criminal Appeal for leave to appeal against the conviction and sentence. On the application for leave to appeal the Court was asked to receive the Emergency Powers (No. 373) Order, 1946, Art. 3 (1) of which provides:—"Every Government Order, including this Order, and every subsidiary instrument shall be (and, in the case of every such Order or instrument made before the date of this Order, be deemed always to have been) judicially noticed."

Held:

1. That watches were "instruments" within the meaning of that word as used in the Schedule to the Emergency Powers (Control of Export) Order, 1940. The group of articles described in the words "cutlery, hardware, implements and instruments" was a heterogeneous group and the ejusdem generis rule of interpretation was inapplicable.

2. That the amendment of the indictment by the insertion of the sub-section did not alter the substance of the charge. Neither did the indictment charge two separate conspiracies, but one only with a single object. The mention in the indictment of the amendment of s. 5 by the later Act was proper as the indictment originally stood. That it became superfluous by the specific mention of sub-s. 2 of s. 5 could not confuse the accused or render the indictment unintelligible.

3. That, as the statute made the act with which the accused were charged an offence subject to a particular exception, viz., where the exporter had a licence to export the articles, the onus of proving that the accused hud not got a licence, was not upon the prosecution. R. (Sheahan) v. Justices of Cork, [1907] 2 I. R. 5, at p. 11, and Attorney-General v. Duff, [1941] I. R. 406, applied.

4. That the Special Criminal Court was entitled to act upon the uncorroborated evidence of accomplices, who hud been convicted and were awaiting sentence, although it would have been more satisfactory if these witnesses had been sentenced before giving evidence.

5. That the Emergency Powers (No. 373) Order, 1946, placed Orders made under the Emergency Powers Act, 1939, in the same position as statutes, and was of general application and was binding on the Court. The fact that the Order had retrospective effect did not invalidate it. In re McGrath and Harte, [1941] I. R. 68, and Minister for Agriculture v. O'Connell, [1942] I. R. 600, applied. The Order did not suspend, amend, or apply the Emergency Powers Acts and consequently did not fall within the provisions of s. 6, sub-s. 1 (h) of the Emergency Powers (Continuance and Amendment) Act, 1945.

Criminal Appeal.

Joseph Shribman and William Samuels applied for leave to appeal from the refusal of the Special Criminal Court to grant a certificate to allow an appeal.

The two applicants were convicted of conspiracy to export scheduled articles otherwise than in accordance with the provisions of Art. 3 of the Emergency Powers (Control of Export) Order, 1940, contrary to s. 5, sub-s. 2, of the Emergency Powers Act, 1939, as amended by s. 8 of the Emergency Powers (Continuance and Amendment) Act, 1942.

By the Schedule to the Emergency Powers (Control of Export) Order, 1940, the export of "cutlery, hardware, implements and instruments" was prohibited except under licence, and the accused were charged with exporting"scheduled articles (within the description cutlery, hardware, implements and instruments), to wit, watches."

The grounds of appeal which were twenty-five in number may be summarised as follows:—

1. That the export of watches was not prohibited by the Emergency Powers (Control of Export) Order, 1940.

2. That the Special Criminal Court acted without jurisdiction in amending the indictment from a charge of conspiracy at Common Law to a charge of statutory conspiracy.

3. That the indictment was bad (a) inasmuch as it charged two conspiracies, (b) because it referred to s. 8 of the Emergency Powers (Continuance and Amendment) Act, 1942, and (c) because it was unintelligible.

4. That the onus lay upon the prosecution of proving that there was not in existence a licence for the export of the watches.

5. That the evidence against the accused was the uncorroborated evidence of accomplices and was of such a character as to make it unreasonable, unjustifiable and unsafe to act thereon.

6. That the accomplices had been convicted and were awaiting sentence and that their evidence should be considered unreliable and insufficient to justify conviction.

7. That in view of the failure of the prosecution to prove the Emergency Powers (Control of Export) Order, 1940, there was no evidence, or, alternatively, no sufficient evidence, to support the convictions.

8. That evidence was wrongly admitted.

9. That there was no evidence, or, alternatively, no sufficient evidence, of mens rea on the part of the accused.

10. That the Court misdirected itself in admitting irrelevant evidence.

11. That the Court misdirected itself as to the burden of proof.

12. That counsel for the prosecution wrongly submitted to the Court that the burden of proof rested on the defence.

13. That the trial was unsatisfactory.

14. That the sentences were excessive.

Cur. adv. vult.

The judgment of the Court was delivered by Maguire P.

Maguire P. :—

The appellants were tried before the Special Criminal Court on an indictment which charged them with conspiracy to export scheduled articles otherwise than under and in accordance with the provisions of Article 3 of the Emergency Powers (Control of Export) Order, 1940, contrary to s. 5,

sub-s. 2, of the Emergency Powers Act, 1939, as amended by s. 8 of the Emergency Powers (Continuance and Amendment) Act, 1942.

The particulars of the offence set out in the indictment were that they, in the years, 1941, 1942, 1943 and 1944, in the City of Dublin, conspired together and with Michael Moylan, Robert Murphy, William James Knowd and James Casey to export scheduled articles (within the description cutlery, hardware, implements and instruments), to wit, watches, otherwise than under and in accordance with a licence issued by a Minister under the Emergency Powers (Control of Export) Order, 1940.

The trial lasted twenty-three days. In the result both accused were found guilty.

Joseph Shribman was ordered to suffer penal servitude for three years and was fined £4,500.

William Samuels was ordered to be imprisoned for two...